23 ASIAN LEGAL BUSINESS CHINA • 亚洲法律杂志-中国版 WWW.LEGALBUSINESSONLINE.COM/CHINA two stages: pre-training and application. During pre-training, the LLM processes a vast array of text, graphic, and video materials, which are typically subject to copyright control.” “At the application stage, Gen AI has demonstrated epoch-making capabilities of generation. Whether text, image or video, any content output has authorlike attributes and is therefore naturally linked to copyright.” Therefore, based on his observations, the current global debate on Gen AI-related IP issues mainly focuses on the rights involved in the materials used in training end and the copyright ownership of the works generated by Gen AI. RAPID RESPONSE Problems attract regulations. In the past few years, China has shown global leadership in formulating regulations for new technologies. There is no exception when it comes to Gen AI. According to He Wei, the Administrative Provisions on Algorithmic Recommendation in Internet Information Services and the Administrative Provisions on Deep Synthesis of Internet Information Services issued in 2022 are both administrative-level regulations imposed on the technology applied by AI. Then, after the emergence of ChatGPT, “China also actively followed up with rulemaking. For example, last July, the Ministry of Science and Technology announced the inclusion of the drafting of an artificial intelligence act in the national legislative work plan. On July 10, the Interim Administrative Measures for Generative Artificial Intelligence Services, also known as Interim Measures, were officially promulgated at what can be described as ‘lightning speed.’” Long Chuanhong, president of CCPIT Patent & Trademark Law Office, explains how the recent rules address IP issues. Specifically, Articles 4 and 7 of the Interim Measures state that “the provision and use of Gen AI services should respect intellectual property” and that “Gen AI service providers must conduct pre-training, fine-tuning, and other data processing activities legally. If IP is involved, they must not infringe on the legal IP rights of others.” “These provisions have provided legal bases for regulating IP protection of Gen AI services. However, the Interim Measures only offer general principles without providing explicit clarifications for issues such as what specific operations in Gen AI services will cause IP infringement and whether there are fair use exceptions. Further legislation and practical development are needed.” In terms of patents, Long notes the importance of the updated Detailed Rules of Implementation of the Patent Law and the Patent Examination Guidelines that took effect earlier this year. “These regulations address two critical questions: whether AI itself can be recognized as an inventor or patent holder, and whether an AI application or algorithm qualifies for a patent, including how to refine the examination rules.” Long further explains that regarding the legal eligibility of AI, the Patent Examination Guidelines stipulate that “the inventor shall be an individual, and that the name of an entity or collective and the name of AI shall not be filled out in the application. For example, the applicant’s name cannot be ‘XX research team’ or ‘xx AI’. This seems to have excluded the possibility of AI being applicant.” On the patentability of AI applications or algorithms, “the Patent Examination Guidelines have specifically stipulated the examination rules for invention patent applications involving AI in the 2019 revision. The revisions this time have added circumstances where AIrelated inventions are patentable and provided corresponding illustrations,” says Long. INTELLECTUAL PROPERTY
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